America's Dilemma

November 23, 1998

In this century Americans were deeply divided over prohibition, the McCarthy era of the cold war, and Vietnam.

Commentators have tied themselves in knots trying to explain why Americans are not similarly shouting each other down at dinner parties over this year's presidential perjury and impeachment drama. Only the House Judiciary Committee's polarized Democrats and Republicans appear to be reaching such a pitch.

What seems likely is that all those months of polls showing Americans widely approving President Clinton's policy performance but deeply disapproving his moral behavior represent a different kind of national divide. It's a split within citizens instead of between them. A majority of Americans are both pro-Clinton and anti-Clinton. The dinner party spat is internal.

Last week another scene in the impeachment drama ended, but little seems to have changed. The big jury - the voters - still appears loath to have two years of the presidency ended or disrupted, but satisfied to have lying by the chief enforcer of the nation's laws punished in some way.

The immediate jury - the House Judiciary Committee - remains for the most part bitterly divided over recommending impeachment - indictment - to the full House. And whatever the committee does in the next few weeks, the full House seems less likely to vote impeachment as the number of moderate Republicans declaring against such impeachment rises. It appears that 25 to 40 House Republicans will not vote to impeach. In any event, the Senate is unlikely to convict the president unless some new evidence of high crimes appears.

Testifying last week before the Judiciary Committee, independent counsel Kenneth Starr acquitted himself calmly and well. White House counsel David Kendall and the Democrats largely abandoned defense of Clinton's conduct, and instead spent their allotted time seeking to make Mr. Starr the issue. Puzzlingly, Starr's ethics adviser, Sam Dash of Watergate note, chose to resign. That was itself perplexing ethical behavior, since Mr. Dash had approved of all earlier evidence gathering and presentation of that evidence to the Judiciary Committee.

As presented, some allegations are arguable, but key facts of the case leave Clinton defenders in trouble.

Committee Democrats and even a few Republicans are willing to give the president the legal benefit of the doubt over his January deposition in the Paula Jones case.

On obstruction of justice charges, Clinton's defenders have presented alternative, if problematic, explanations of the facts. Many, if not most, Republicans would not impeach on abuse-of-power charges related to assertion of executive privilege. Few Democrats would support the charge.

Clinton's biggest problem is his August video testimony. Perjury, before a federal grand jury, is an offense against the judicial system the president is sworn to uphold.

The issue is not whether perjury is a crime: People go to jail for it. But is perjury before a federal grand jury an impeachable offense? It's a tough call, and reasonable experts have arrived at different conclusions. Committee members appear split along party lines. In addition, they will have to consider whether impeachment at this point is really in the country's best interest.

If the House doesn't impeach, or the Senate not convict, does Clinton walk away untouched? Even most Democrats are concerned about the message that would send. Many on both sides of the aisle have raised censuring of the president as a way out.

Opponents of a censure - Republicans and Democrats - make two points against it: first, that it is unconstitutional; second, that it would lead to a spate of censures on any subject over which Congress and the White House disagree.

The first argument has been made ever since the House debated censuring President John Adams in 1800. The Constitution is silent on the subject. But a recent study by the Congressional Research Service shows Congress censured Presidents Andrew Jackson, John Tyler, and James Buchanan. Censure resolutions against President Richard Nixon were overtaken by articles of impeachment.

The second argument can't be lightly dismissed. A "censure of the week" atmosphere would be severely disruptive of good government. But if the House does not impeach or the Senate does not convict, Congress will have to consider some form of censure in lieu of doing nothing. In the end, such a punishment before the gaze of history is desirable if laws are to be respected. And that, fundamentally, is what this year's long, uneasy debate has been about.